Ninth Amendment Rights?

June 25, 2022 5:48 PM

If Alito's opinion in Dobbs hinges on the fact that "abortion" is never mentioned in the Constitution,* why doesn't the Ninth Amendment apply?

Text of the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Why doesn't this include the right of adults to make their own medical decisions?

posted by basalganglia to Law & Government (7 answers total)

The Ninth Amendment tends not to be (is never?) used directly. It isn't viewed as a mandate to assert rights exist absent other justification. But there has to be acceptance that a right exists before the amendment matters.

My layman's understanding is that the way not-explicitly-enumerated rights are justified is by inferring them from the underlying principles in other parts of the Constitution. So the 4th amendment (among others) implies a right to privacy and bodily autonomy, and then these principles are applied in other ways to justify rights to birth control or travel.

This is why the court spent time on crappy amateur history (at least in the draft) to say "Oh, there was never really acceptance of abortion; clearly the fundamental rights the constitution does grant don't include abortion." I guess they'd probably use this to deny the argument that abortion is "medical treatment," to use your term.

I'm not saying this is well reasoned--I'm really angry like so many here--but basically they're denying a right exists, so the Ninth Amendment wouldn't apply--it applies only to existing rights.

I recall this episode of Roman Mars Con Law podcast explaining a lot of of this, though I'm not sure if they explicitly mention the 9th.
posted by mark k at 6:07 PM on June 25, 2022 [1 favorite]

Best answer: The default for all areas of regulation is to be retained by the states. Crime, medical care, land management, everything.

The Bill of Rights enumerates exceptions to this rule, which cannot be regulated (limited) by the states. Free speech, interstate commerce, etc. (There is also now a robust Federal bureaucracy that also has grabbed a lot of jurisdiction over things like land use.)

What Roe v Wade said was that there was an implication, from the enumerated Constitutional rights, that abortion is also an issue that should also be among those not regulated (limited unduly) by the states. (Although there have been some state limits, which had to be measured against the Roe decision.)

The Dobbs decision (Alito's not Scalia's) says that this inference was incorrect, and the issue should be retained by the states.
posted by fingersandtoes at 6:08 PM on June 25, 2022 [3 favorites]

mark k and fingersandtoes are more in the exact argument, and I'm sure others will have more detail.

What I would put forth is that the argument in this decision isn't really about the law. It is an act of power in which the majority opinion is only concerned with outlining that which supports the preordained decision. The conservative majority has the votes to make whatever decisions they want. So, whatever they want to happen will happen with whatever supporting material they want to use to support the current (and future) decision(s).
posted by past unusual at 6:17 PM on June 25, 2022 [6 favorites]

The Alito leak exulted over the fact that this was States' Rights in action. The tone was so triumphal that at first, I thought it was a fraud. The official verdict is much quieter but certainly mentions States' Rights. This has been a vehicle for all kinds of racist and other legal nastiness in the US.
In the recent Thomas-penned decision on NY gun rights, there was reference to past acceptance of firearms. Not only was the Second Amendment absolute, it codified common practice, and it applied to individuals rather than militia groups. (Thomas brushed aside English precedent.) But the Court claimed that the past acceptance and practice of abortion did not exist. (They waved aside the anthropological and historic evidence.)
These are two separate legal questions: States' Rights, for one, and linkage of Constitutional and common practice (not Common Law exactly, but deriving some strength from that cousin).
posted by CCBC at 6:43 PM on June 25, 2022 [2 favorites]

The constitution says whatever the right wants it to say
posted by oldnumberseven at 1:41 AM on June 26, 2022 [4 favorites]

Robert Bork, long a hero of the GOP on these issues, (in)famously said, and I paraphrase, no one really knows what the 9th Amendment means, so I regard it as no better than an inkblot, and I choose to ignore it.

His actual comment, in his Tempting of America:

The judge who cannot make out the meaning of a provision is in exactly the same circumstance as a judge who has no Constitution to work with. There being nothing to work with, the judge should refrain from working. A provision whose meaning cannot be ascertained is precisely like a provision that is written in Sanskrit or is obliterated past deciphering by an ink blot. No judge is entitled to interpret an ink blot on the ground that there must be something under it.

The problem with that "thought," if you want to call it that, is that nothing that the Framers added to the Bill of Rights was intended to be meaningless. His attitude was, essentially, one of judicial laziness.

A response to those who criticized Bork's position was published by Ramesh Ponnuru at National Review. I did not find it convincing.
posted by yclipse at 5:09 AM on June 26, 2022 [1 favorite]

There is no reason that we can’t interpret the ninth amendment that we have more rights.

In chapter 28 of Allow me to Retort: A Black Guy’s Guide to the Constitution, Elie Mystal writes:

There’s a reason that Scalia, Bork, and other conservatives deny the existence of the Ninth Amendment: it’s because the Ninth Amendment blows their whole little project apart. A theory of constitutional interpretation that restricts the rights of humans to a finite list agreed to by eighteenth-century slavers cannot survive a provision from one of those slavers that explicitly says their list is not exhaustive of all rights. Madison put the Ninth Amendment in to counteract what he knew small-minded people would do to the rest of the document, and so small-minded conservatives have to pretend it’s not even there in order to achieve their goals of retarding progress.

We have more rights than those that are explicitly conferred in the Constitution. The Constitution says so!

The limiting principle on those rights is not the eighteenth-century perception of rights or privileges. It’s not informed by Clarence Thomas conducting a séance to talk to his ancestral captors, or Neil Gorsuch unearthing the original Constitutional Convention lunch menu to divine whether “roasting” was a delicious punishment allowed by the founders.

Mystal argues that there are lots of legitimate ways to interpret the constitution to build a more just society (especially using the 14th and 15th amendments), but we have so far chosen not to.
posted by rockindata at 5:28 PM on June 26, 2022 [3 favorites]